Madras High Court
Janaki vs S.Desigan on 29 September, 2009
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29/09/2009
CORAM
THE HONOURABLE MR. JUSTICE M.M.SUNDRESH
A.S. NO.700 OF 2003
AND
C.R.P.(NPD) NO.2 OF 2004
1.Janaki
2.Kuppusamy
3.Sujakar .. Appellants/Plaintiffs
(in A.S.No.700 of 2003)
A.Subramanian .. Petitioner
(in C.R.P.(NPD)No.2 /2004)
Vs
S.Desigan .. Respondent/Defendant
(in A.S.No.700 of 2003)
S.Desikan .. Respondent
(in C.R.P.(NPD)No.2 /2004)
PRAYER in AS.NO.700/2003
This First Appeal has been filed under Section 96 of
the Civil Procedure Code, against the judgment and decree made in O.S.No.631 of
1992 dated 31.10.2002, on the file of the II Additional Subordinate Judge,
Trichirapalli.
PRAYER in CRP(NPD)No.2/2004
This Civil Revision Petition has been filed under
Section 25 of the Tamil Nadu Buildings (L&R Control) Act, 1960 as amended by Act
1/1973, against the judgment and decree in R.C.A.No.91 of 1998 on the file of
the Rent Control Appellate Authority cum Principal Sub Judge, Trichirappalli
dated 28.04.2004 in reversing the well considered judgement and decree in
R.C.O.P.No.252 of 1996 on the file of Rent Controller, Tiruchirapalli dated
24.02.1998.
!For Appellants / ... Shri.S.Parthasarathy
Petitioner Senior Advocate for
M/s.N.Krishnaveni
^For Respondent ... Mr.S.Subbiah
* * * * *
:JUDGMENT
The unsuccessful plaintiffs in O.S.No.631 of 1992 who filed the Suit for specific performance with the alternative relief of return of the amount has filed the Appeal, challenging the judgment and the decree rendered by the Sub- Court, Trichirapalli granting a decree for the return of amount. He has also filed a Revision challenging the judgment and decree rendered in R.C.A.No.91 of 1998 on the file of the Rent Control Appellate Authority cum Principal Sub Court, Tiruchirapalli wherein an order of eviction has been passed on the ground of willful default with different user and Act of Waste.
2.In view of the fact that both the cases are interconnected with each other and the respondent being the one and the same, the Appeal and the Revision can be taken up together for disposal.
3.The arguments have been heard in both the Appeal and the Revision advanced by the learned counsels appearing for both sides.
4.The case of the plaintiffs/appellants are as follows:
The first plaintiff and the plaintiffs 2 and 3 are mother and children. The first plaintiff's husband one Mr.A.Subramanian is the tenant of the defendant. The suit property belongs to the defendant. The defendant has received some amount by executing a promissory note for a sum of Rs.65,000/- from the first plaintiff and her husband A.Subramanian. Thereafter, another sum of Rs.32,500/- have been received by the defendant as advance for the purchase of the suit property. In pursuant to the same, an agreement was entered between the defendant being the owner of the property and with the plaintiff's 2 and 3 represented by their father A.Subramanian and also as an agent of the first plaintiff. In the said agreement it has been agreed that the sale consideration was for a sum of Rs.3,10,000/-. The amount received by the defendant for a sum of Rs.65,000/- and the subsequent amount of Rs.32,500/- would form part of the sale consideration. At the time of agreement for sale dated 20.07.1989 another sum of Rs.40,000/- has been paid. The remaining sum of Rs.65,000/- has to be paid at the time of registration of the sale deed or before subject to the convenience of the parties. The defendant has informed that he would get the sale deed only after clearing the loans with the State Bank Housing Society. Therefore, a duty is imposed on the defendant to clear the loans and get the title deed. In view of the said factm no time limit is fixed. However for the purpose of limitation three years period was fixed.
After the execution of the said agreement, the plaintiffs made the payment between 15.09.1989 and 03.12.1990 in different installments, the remaining of sale consideration was Rs.27,500/-. Even though the defendant clear the debt and get the sale deed in his name, he evaded the execution of sale deed and under those circumstances, the plaintiffs were constrained to issue a lawyer's notice dated 10.06.1992. The defendant gave a reply on untenable grounds stating that the defendant was paid Rs.35,000/- and Rs.30,000/- on promissory notes in favour of the Finance Company. The plaintiffs were asked to return the promissory notes. It is stated that the reply notice that the sale consideration was paid in small installments. Further, the defendant has imposed certain conditions which are not legally sustainable. The plaintiffs are in possession of the suit property in pursuant to the part performance is contemplated under Section 53-A of the Specific Relief Act. The claim of compensation and the payment of loan by the defendant is unsustainable. Hence under those circumstances, the plaintiffs sent a rejoinder notice on 01.07.1992. Since there was no reply, the plaintiffs are constrained to file the present Suit for specific performance and in the alternative for the return of the amount with interest.
5.The case of the defendant in his written statement as well as the additional written statement is as follows:
It is not true that the possession was handed over to the plaintiffs in pursuant to the sale agreement. The first plaintiff's husband is in possession as a tenant of the suit property. The rent payable is Rs.800/- per month and the first plaintiff's husband has not paid the same from 1986 onwards. The plaintiffs seeking a equitable remedy of specific performance must come to the Court with clean hands. The plaintiffs have filed the Suit on false allegations and therefore, they are not entitled for the relief. Even a perusal of the agreement dated 20.07.1989 would show that the husband of the first plaintiff Mr.A.Subramanian was made as a party. It is agreed between the parties that it is understood and accepted by the parties that the said A.Subramanian should pay the rents. Section 53-A of the Transfer of Property Act could be used only as a shield but not as a sward.
The value of the property as on 20.07.1989 was more than Rs.5,50,000/-. The building was in good condition. The defendant was under
pressure and also due to the conduct of the first plaintiff to execute the agreement. The husband of the first plaintiff did not pay the rent from 01.12.1985 and the defendant was bad need in money to celebrate the marriage of his daughter and for the education of his son. Only under those circumstances, the defendant received the money from the plaintiff's Finance Company. In fact in order to celebrate the marriage of his daughter and to clear the debt, the defendant applies in the newspaper "THE HINDU" and thereafter, number of intending purchasers made offers. However, the first plaintiff and her husband did not allowed to inspect the suit property and threatened them that the first plaintiff husband is not vacated the property, if a third party buys the same.
Therefore, on account of the pressure and tactics adopted by the plaintiffs and the husband of the first plaintiff, the defendant was made to surrender and forced to accept the terms by executing the agreement on 20.07.1989 for a very lesser amount. The defendant was forced to do the same also in view of the fact that he was mostly in North India thus unable to take proper steps. This is also because of the fact that the first plaintiff husband has failed to pay the rent from 01.12.1989 to 31.10.1996 therefore the agreement gave a undue advantage to the plaintiffs over the defendant and therefore, the same is not valid under Section 20(2)(a) of the Specific Relief Act 1963. Further, the plaintiffs have put up construction without the concern of the defendant by changing the character of the suit property and causing damage to the same, the suit is lawful to be dismissed being barred by limitation and also for the non-joinder of necessary party since the first plaintiff husband A.Subramanian has not been made as a party. The defendant is ready and willing to return a sum of Rs.2,82,500/- received by him and he has no objection to pass a decree to that effect against the defendant but without cost an interest. Hence, the suit filed was specific performance will have to be dismissed.
6.The case of the petitioner in R.C.O.P.252 of 1996 is as follows:
The petitioner mentioned property is a house belonging to the petitioner. The respondent is the tenant. The property has been let out in the month of July 1979 for a monthly rent of Rs.400/- which has been increased to Rs.800/-. There was an agreement between the petitioner and the family members of the respondent to which the respondent is also made as one of the parties. From 1985 December to 31.10.1996 for a period of 10 years 11 months, the respondent has to pay a sum of Rs.1,04,800/-. The said amount has not been paid by him. The petition mentioned property is a house and the same has been let out for residential purpose. However, the respondent has put up a factory without the concern of the petitioner and due to the same the character of the property has been changed resulting in the loss of the valuation of the property belonging to the petitioner. Therefore, the respondent is liable to be evicted under Sections 10(2)(1), 10(2)(2)(1), 10(2)(3), 10(2)(7) of Tamil Nadu Building (Lease and Rent Control) Act 18 of 1960.
7.The case of the respondent has cull out from the counter affidavit is as follows:
It is not true that the respondent is in arrears of rent. The rent has not been paid since there was an agreement between the family members of the respondent and the petitioner by which substantial amount has been paid. It has been agreed between the parties that the rent will have to be adjusted towards the interest payable for the loan obtained from the respondent by the petitioner. The loan was obtained from the respondent by the petitioner on 03.01.1986 which was received by the subsequent agreement. There is a Suit filed by the family members of the respondent in O.S.No.631 of 1992 therefore in view of the pendency of the said Suit, the eviction petition has not maintainable.
Hence it is pleaded that the eviction petition will have to be dismissed.
8.The Trial Court has dismissed the suit filed by the plaintiffs in O.S.No.631 of 1992 seeking the relief of specific performance but granted a decree for return of the advance amount. The Rent Controller dismissed the eviction petition but on appeal the same was revised by the Appellate Court thereby ordering a eviction. Therefore, seeking a relief of specific performance, the unsuccessful plaintiffs in O.S.No.631 of 1992 filed the appeal and challenging the order of eviction granted by the Appellate Court, the respondent in R.C.O.P.252 of 1996 being the tenant has filed the present revision. Before the Trial Court, the plaintiffs examined one witness namely the husband of the first plaintiff A.Subramanian. On the side of the plaintiffs 26 documents have been marked. Ex.A-1 and Ex.A-2 are the promissory notes executed by the defendant in favour of the first plaintiff and her husband. Ex.A-3 is the agreement executed between the parties. Ex.A-4 is the document of sale deed executed by the Society in favour of the defendant. Ex.A-6 to Ex.A-10 are the payment receipts issued by the defendant. Similarly before the learned Rent Controller, the said A.Subramanian who is the respondent therein was examined himself as RW-1.
9.The defendant in O.S.No.631 of 1992 has examined himself as DW-1. Ex.B-1 to Ex.B-31 are the documents marked on behalf of the defendant. Ex.B-1 to Ex.B-19 are the letters written to the defendant by PW-1 A.Subramanian. Ex.B-20 is the advertisement given in the English Newspaper "THE HINDU'. Ex.B-23 to Ex.B-30 are the letters sent by the intending purchasers in pursuant to the advertisement. Ex.B-31 is the reply sent by the defendant. Before the Rent Control Court, the defendant in O.S.No.631 of 1992 being the petitioner examined himself as PW-1 and marked two documents which are exchange of legal notices between the parties.
10.The learned counsel for the appellants in A.S.No.700 of 2003 and the petitioner in C.R.P.(NPD)No.2 of 2004 submitted that time is not essence of the contract. The defendant did not insist for the completion of the agreement. The defendant after executing the document in Ex.A-3 cannot go back and contend contrary to the same. The agreement specifies three years period for the execution of the sale deed inasmuch as the Suit having been filed within the time limit of three years, the appellants are unable to get the decree for specific performance. There is no delay in filing the Suit and making a demand for execution of the sale deed even otherwise a mere delay in itself cannot be a ground for declining the relief of specific performance. The substantial amount has already been paid and what is required to be is only lesser amount.
11.The learned counsel also submitted that a mere construction would not amount to Act to Waste and no objections have been raised by the landlord for using the building for other purpose. The landlord has also not made any demand for the rent. There is an understanding between the parties that the interest payable on the money obtained by the landlord earlier and also in view of the subsequent agreement no rent need to be pay by adjusting the interests payable by the landlord. Under Section 53-A of the Specific Relief Act, possession has been handed over to the plaintiffs in pursuant to the agreement and therefore, there is no question of willful default.
12.In support of his contention, the time is essence of the contract, the learned senior counsel Shri.S.Parthasarathy has relied upon the judgments reported in (1993) 1 SCC 519 [CHAND RANI vs. KAMAL RANI] and (2008) 4 MLJ 766 [A.RAMANATHAN CHETTHIAR vs. R.RANGANAYAKI AND OTHERS] to submit that mere delay in itself cannot be a ground to deny the relief of specific performance. The learned senior counsel has also relied upon the judgments reported in AIR 1998 MADRAS 336 [K.M.RAJENDRAN vs. ARUL PRAKASAM]; AIR 1972 MADRAS 339 [ESWARI AMMA vs. M.K.KORAH]; AIR 2000 KERALA 408 [JOHN THOMAS vs. JOSEPH THOMAS] and (2009) 5 MLJ 1047 [ALAGAMMAL vs. GANESAN]. The learned senior counsel has relied upon the judgment reported in 1996-2-L.W.-1 [PACHAIAPPAN AND OTHERS vs. S.P.KOON MARI] to submit that in a case the false claim is immaterial and does not affect the main case, the Court should not decline the relief of specific performance. The learned senior counsel also relied upon the judgment in 1996-1-L.W.-675 [GURUSWAMI GOUNDER vs. KESAVA REDDIAR AND ANOTHER] to submit that not every incorrect case pleaded will disentail the plaintiff from getting the relief as having come to the Court in unclean hands.
13.The learned senior counsel further submitted that when there is an agreement for sale, the relationship of landlord and tenant would change. Therefore, the very eviction petition filed by the landlord is not maintainable as held by the Supreme Court in the judgment reported in 2000-2-L.W.805 [R.KANTHIMATHI vs. MRS.BEATRICE XAVIER]. The learned senior counsel places a submission based upon the judgment reported in (2008) 11 SCC 45 [SILVEY AND OTHERS vs. ARUN VARGHESE AND ANOTHER] and submitted that the conduct of the defendant also will have to be taken into consideration while decreeing or denying the relief of specific performance. Therefore, the learned senior counsel submitted that based upon the above said legal position, the Appeal as well as the Revision will have to be allowed.
14.Per contra Mr.S.Subbiah, learned senior counsel appearing for the respondent submitted that the necessity for which the respondent has decided to sale the suit property has been loosed by the inordinate delay on the part of the plaintiffs. The learned senior counsel submitted that on a perusal of the evidence of the defendant would show that the decision to sale the property has been made in order to conduct the marriage of his daughter and also for the purpose of the education of his son. The learned senior counsel further submitted that the plaintiffs have not proved readiness and willingness which is mandatory for getting the relief of specific performance. According to the learned counsel, even a perusal of the evidence of PW-1 would show that the yearly income is only Rs.60,000/- the same cannot be said the plaintiffs are ready and willing to execute the sale deed. Moreover, it is not in dispute that Ex.A.-4, the defendant has immediately got the sale deed from the Society and gave the same to the plaintiffs but for the reasons known to them, the sale deed has not been executed. PW-1 also states that there was no written agreement for adjusting the interests obtained by the execution of the promissory notes that the rent payable by the respondent in also appeal. Moreover there is an admission on behalf of PW-1 that he has not paid the rent from January 1986 and he has been running the Industry in the said place after taking the same for residential purpose. He has also admitted that no permission has been obtained for running the Industry. PW-1 further stated that the loan has been obtained by the defendant for the purpose of conduct the marriage of his daughter and also for educational purposes.
15.The learned senior counsel submitted that a reading of Ex.A-3 would show that time is essence of the contract since the sale deed will have to be executed as soon as the document is obtained from the Society. The learned counsel further submitted that as seen from the evidence of DW-1 and not denied by PW-1. There was some urgency on the part of the defendant to execute the sale which has been frustrated by the time taken by the plaintiffs. Moreover even after the last payment, the plaintiffs have delayed the payment and there is no explanation for the same. The defendant was forced to execute Ex.A-3 in view of the compelling circumstances which was also due to the conduct of the husband of the plaintiff as well as the first plaintiff. The discretionary relief under the Specific Relief Act cannot be executed because the plaintiffs have come with unclean hands and the rent has not been paid admitted by for nearly 10 years.
16.The learned senior counsel for the respondent submitted that when the Trial Court has exercised its discretion then the Appellate Court cannot go against the same by interfering with the said discretion exercised by the Trial Court. The learned counsel also submitted that the readiness and willingness will have to be proved till the execution of the decree and the escalation of the price also a fact to be considered since the property in question is situated in the heart of the Trichy Town which is a Corporation. The learned senior counsel submitted that Section 53-A of the Specific Relief Act is not attracted to the present case since the possession has not been handed over in pursuant to the agreement and therefore the possession is deemed to continue as per the lease.
17.The learned senior counsel also submitted that the specific performance cannot be granted merely because it is lawful to do so. The learned senior counsel has relied upon the judgments reported in (1996) 4 SCC 526 [HIS HOLINESS ACHARYA SWAMI GANESH DASSJI vs. SITA RAM THAPAR] and AIR 1996 SC 116 [N.P.THIRUGNANAM vs. R.JAGAN MOHAN RAO] in support of his contention that in the absence of the proof of readiness and willingness and establish the same, the plaintiffs are not entitled to get the decree for specific performance. The learned senior counsel also relied upon the judgment reported in (2005) 6 SCC 243 [UMABAI vs. NILKANTH DHONDIBA CHAVAN] and contended that in the absence of evidence of any sufficient fund, the decree for specific performance cannot be granted. According to the learned counsel, the plaintiffs will have to prove readiness and willingness till the decree has held by the Hon'ble Apex Court in the judgment reported in (2008) 12 SCC 145 [BAL KRISHNA vs. BHAGWAN DAS]. The learned senior counsel has also relied upon the judgment reported in (2001) 6 SCC 600 [A.C.ARULAPPAN vs. AHALYA NAIK] and contended that the discretionary relief of specific performance cannot be granted by the Appellate Court when the same was rejected by the Trial Court. According to the learned senior counsel as held by the Hon'ble Apex Court in the judgment reported in AIR 1996 SC 1504 [M/S.P.R.DEB AND ASSOCIATES vs. SUNANDA ROY] when the purpose was loosed due to the delay than the relief of specific performance cannot be granted. An unexplained delay will disentail the party from getting the relief of specific performance as held in the judgment reported in 1993-2-L.W.-84 [CHELLIAH NADAR, G. AND 4 OTHERS vs. PERIASAMI NADAR AND THREE OTHERS].
18.In so far as the applicability under Section 53-A of the Specific Relief Act is concerned, the learned senior counsel relied upon the judgments reported in 1999-1-L.W.336 [PADMAVATHY AND ANOTHER vs. N.NARAYANAN]; 2002 (3) CTC 277 [SARADAMANI KANDAPPAN vs. S.RAJALAKSHMI] and (2003) 4 SCC 705 [D.S.PARVATHAMMA VS. A.SRINIVASAN] and submitted that only when possession is handed over in pursuant to the part performance, a party can take advantage under Section 53-A of the Specific Relief Act. The learned senior counsel also relied upon the judgment reported in (2008) 12 SCC 145 [BAL KRISHNA vs. BHAGWAN DAS] to submit that the relief of specific performance cannot be granted merely because it is lawful to do so. According to the learned counsel, the raise in price also can be a factor while rejecting the request for specific performance. As held by the Hon'ble Apex Court in the judgment reported in Civil Appeal No.6925 of 2000 dated 20.02.2007 [P.S.RANAKRISHNA REDDY vs. M.K.BHAGYALAKSHMI AND ANOTHER]. In so far as the Act of Waste is concerned, it is submitted that it has to be seen from the point of view of the landlord and therefore, putting up of construction would amount to Act of Waste since it changes the character of the building as held by the Hon'ble High Court in the judgment reported in 1996-2-L.W.-322 [SHANMUGAM, M. vs. C.KANNABIRAN AND ANOTHER]. Therefore, the learned senior counsel prayed that the Appeal as well as the Revision are liable to be rejected.
19.I have heard the arguments of Shri.S.Parthasarathy, learned senior counsel appearing for the appellants and the petitioner as well as Shri.S.Subbiah, learned senior counsel appearing for the respondent.
20.It is not in dispute that the husband of the first plaintiff one Mr.A.Subramanian was the tenant of the respondent. It is also not in dispute that the respondent borrowed some money from the said A.Subramanian as well as the first plaintiff. It is also in admission made by PW-1 that the amount has been received by the respondent in order to conduct the marriage of his daughter and also for educational expenses. PW-1 in his evidence states that the respondent has performed his part of the contract by getting the sale deed from the Society and produce the same before PW-1. PW-1 further states that there is no agreement in writing that the interests payable to PW-1 and the plaintiffs will have to be adjusted with the rent payable. It is also in admission that from 01.01.1986 onwards no rent has been paid. PW-1 further states that the respondent has handed over the documents from the Society immediately. PW-1 further admits that after the change of title in favour of the respondent, the plaintiffs will have to pay the amount and get the sale deed executed. It is a further evidence of PW-1 that he has not asked the respondent to execute the sale deed after he received the document under Ex.A-4. He also states that he does not know that due to the failure of the plaintiffs in not paying the amount immediately, the respondent was made to suffer in conducting the marriage of his daughter. PW-1 also deposes that it is the respondent who said that he would take the money in installments. However he has not let in any evidence to substantiate his case in support of the said contention.
21.In the present case on hand, as seen from Ex.B-23 to Ex.B-30 the respondent has taken steps to sale his lands due to the family necessities. The said necessity has not been specifically denied by the plaintiffs. It is also not in dispute that the plaintiffs were in possession even before the execution of Ex.A-3 and the respondent made attempts to sale the property. Therefore, the above facts would substantiate the case of the defendant that the plaintiffs as well as the husband of the first plaintiff have taken the advantage of the situation in view of the fact that they have been in possession of the suit property. A perusal of the agreement executed under Ex.A-3 would show that after the execution of Ex.A-4 a sale deed will have to be executed by the plaintiffs and the amount will be given at the time of execution of the sale deed. Therefore, on a consideration of the fact that the respondent has executed Ex.A- 3 in view of the family necessities. It cannot be considered that it is a respondent who wanted the payment in installments. Moreover, there is no explanation for the delay after the last payment made by the plaintiffs. Hence the contention of the learned senior counsel that the respondent was constrained to conduct the marriage and spent educational of his children in view of the conduct of the plaintiffs in not making the payment on time will have to be accepted. When the parties for which the respondent seeks to sale the suit property is list then the discretionary relief of a specific performance cannot be granted in favour of the plaintiffs. Moreover as observed earlier, it is in admission by PW-1 that the respondent has immediately got the sale deed under Ex.A-4 and handed over the same to PW-1. The plaintiffs have not explained as to why they are waited till the fag end of the limitation and there is no explanation for not making the payment at the earlier point of time and filing the suit immediately on the refusal of the respondent in refusing to execute the sale deed. The judgment relied upon by the learned senior counsel for the plaintiffs Shri.S.Parthasarathy reported in (1993) 1 SCC 519 [CHAND RANI vs. KAMAL RANI] cannot be applied to the present case on hand since a finding has been rendered in the said judgment that time is not the essence of the contract by considering the terms of the contract and the conduct of the Vendee. In fact supports the case of the respondent the Hon'ble Apex Court has held as follows:
"25.From an analysis of the above case-law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may infer that it is to be performed in a reasonable time if the conditions are:
1.from the express terms of the contract;
2.from the nature of the property; and
3.from the surrounding circumstances, for example: the object of making the contract."
22.Applying to the said ratio laid down by the Hon'ble Apex Court it is seen that in the present case on hand object of making contract, terms of the contract and the nature of property would indicate that the time is essence of the contract. Similarly, the judgment relied upon by the learned senior counsel reported (2008) 4 MLJ 766 [A.RAMANATHAN CHETTHIAR vs. R.RANGANAYAKI AND OTHERS] and (2009) 1 MLJ 379 [PONNAMMAL vs. T.BALASUBRAMANIAM]. It has been held that question as to why the time is essence of the contract or not has to be seen based upon the prevent circumstances. As observed earlier on a consideration of the facts, this Court is of the opinion that time is essence of the contract since the respondent has proved that for a specific performance the agreement has been entered into. Other judgments relied upon by the learned counsel for the petitioner reported in AIR 1972 MADRAS 339 [ESWARI AMMA vs. M.K.KORAH]; AIR 1998 MADRAS 336 [K.M.RAJENDRAN vs. ARUL PRAKASAM]; AIR 2000 KERALA 408 [JOHN THOMAS vs. JOSEPH THOMAS] and (2009) 5 MLJ 1047 [ALAGAMMAL vs. GANESAN] are also not applicable to the present case on hand. It is a well settled principle of law that law will have to be applied to the facts and circumstances available to each case even in those cases relied upon by the learned senior counsel it has been held that the question whether the delay would disentail a party to get the relief has to be seen on the facts of each case. The learned senior counsel relied upon the judgment of the Hon'ble Apex Court reported in (2008) 2 MLJ 750 (SC) [BALASAHEB DAYANDEO NAIK vs. APPASAHEB DATTATRAYA PAWAR] to submit that the stipulates of the time by itself would not mean when the time is essence of the contract.
23.A reading of the judgment would show that the Hon'ble Apex Court was pleased to observe in the said case that the defendant did not lead any evidence to substantiate his case that the time was not essence of the contract which is not the situation in the present case on hand therefore, this Court is of the opinion that the said judgment is not applicable to the present case on hand. The learned senior counsel for the petitioner relied upon the judgment reported in (2002) 8 SCC 146 [NIRMALA ANAND vs. ADVENT CORPORATION (P) LTD. AND OTHERS] and (2003) 4 SCC 705 [D.S.PARVATHAMMA VS. A.SRINIVASAN] in support of his contention that while compliance equities, the Court must bear in mind who is the defaulting party. A reading of the said judgment would show that inasmuch as the plaintiffs being the defaulting parties and they have not proved before the Court below that they are ready and willing inspite of that the defendant having been performed his part of the contract, this Court is of the opinion that the equities cannot be accepted in favour of the plaintiffs. Moreover in the said judgment the Hon'ble Apex Court was pleased to hold that in a case where the plaintiff was always ready and willing to perform his part of the contract, having not taken any advantage of his own law and not responsible for the delay and the defendant on the other hand was always trying to wriggle out of the contract, the plaintiffs cannot be penalised. When there is an increase in the value of the land in which case an equity decree can be passed by directing the plaintiff to pay extra amount.
24.As observed earlier, the plaintiffs in the present case are not standing on the same footing as in the cases dealt with by the Hon'ble Apex Court. In the judgment reported in AIR 1996 SC 1504 [M/S.P.R.DEB AND ASSOCIATES vs. SUNANDA ROY] the Apex Court was pleased to observe that when the purpose for which the amount payable by the purchaser is to be used is lost then the purchaser cannot file a Suit for specific performance by committing delay since the very purpose is no longer available in the landlord to sale the property. As observed in the present case, the defendant has entered between the agreement for the purpose of marriage and education of his children which has been lost by the belated and non-payment of the amount by the plaintiffs.
25.It is a well settled principle of law under Section 20 of the Specific Relief Act, the relief sought for by the plaintiffs is a discretionary relief. Such a situation will have to come with clean hands and the proof of readiness and willingness throughout. The ownership of the plaintiffs to prove the above said factors. In such a circumstances, a delay would prevent the plaintiffs from getting the relief. In the present case on hand there is no evidence on the part of the plaintiffs about the readiness and willingness to perform their part of the contract. Under those circumstances, the plaintiffs was not entitled to get the relief of execution of sale deed. In the judgment reported in (1996) 4 SCC 526 [HIS HOLINESS ACHARYA SWAMI GANESH DASSJI vs. SITA RAM THAPAR], the Hon'ble Apex Court has observed as follows:
"2.There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e. by 27-2-1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract.
3.It is sought to be contended by Mr. B.K.Mehta, the learned Senior Counsel for the petitioner, that the petitioner has performed the essential terms of the contract. Essential terms of the contract is that he has to return the approved draft sale deed which he has already returned to him. But amendment sought in the sale deed is not of material particulars and is not an essential term and, therefore, the High Court was in error in considering this aspect of the matter. We find no force in the contention. The essential term of the contract is executing the sale deed within the stipulated period. He did not perform his part of the contract within the stipulated time. The High Court was right in refusing to enforce the contract. It being discretionary remedy, the High court has exercised sound judicial discretion to negate the relief of specific performance of the contract."
26.Similarly, the judgment reported in (1993) 1 MLJ 618 [THE KANCHEEPURAM KAMAKSHI AMMAN SILK HANDLOOM WEAVERS' CO-OPERATIVE PRODUCTION AND SALE SOCIETY LIMITED vs. YAMUNA BAI AND OTHERS], the Hon'ble Division Bench has observed as follows:
"9.We have already referred to the notices issued by the society once a year. There is no explanation as to why the society waited for nearly a year after issuing every notice. Once it was made clear to the society that the defendants would not execute a sale deed as claimed by them, they should have proceeded to enforce specific performance. But, they did not do so. They issued a notice again after a year and filed a suit after expiry of a further year. In the absence of any explanation for this inordinate delay in approaching the court, it can be inferred that the society has waived the performance of contract and abandoned the same. This is a case of unexplained silence and wanton delay and the society cannot escape the consequence of the same by saying that mere delay in seeking specific performance would not disentitle them to get the relief. See Kantilal Sahah v. A.C. Davarajulu Reddiar, (1977) 2 MLJ 484 (D.B.).
10.Reliance is placed on the judgement in Easwari Amma v. M.K.Korah, (1972) 1 M.L.J. 218. A Division Bench of this Court has held that mere delay will not preclude the plaintiff for obtaining specific performance if the suit is otherwise in time. It has also been pointed out by the Bench that the delay must not be such from which it may be properly inferred that the plaintiff has abandoned his right or on account of the delay there must have been such a change of circumstances that the grant of specific performance would prejudice the defendant. The Bench has referred to a judgment of the Supreme Court in Satyanarayana v. Vellohi Rao, (1965) 2 M.L.J. (S.C.) 145 (1965) 2 An. W.R. (S.C.) 145: (1965) 2 S.C.J. 678: A.I.R. 1965 S.C. 1405. The Apex Court has pointed out that the grant of relief of specific performance is discretionary though not arbitrary and it should be guided by judicial Principles. Reference has also been made to an earlier judgment of another Bench in Subbarayalu v.
Tatayya, 1937 M.W.N. 1158. In the earlier case, the Division Bench of this Court refused specific performance on two grounds, (1) the plaintiff had given false testimony in the witness box and (2) granting specific performance would be doing injustice to the respondent. In the present case, it is clear from a reading of the evidence of P.Ws.1 and 2 that they are not willing to speak the truth before the court. It is obvious that they are concealing the facts from the court and their evidence is false. Even that is sufficient to refuse the relief to the plaintiff. In addition to it, the delay on the part of the plaintiff is not explained at all."
27.A reading of the above two judgments would show that when the plaintiffs are not ready and willing and the same has not been proved by the plaintiffs by evidence and in a case where there is an unexplanation silence and delay in approaching the Court and performing the part of the contract by the plaintiffs such a plaintiff cannot get the discretionary relief. This Court is of the opinion that the law laid down in the above said judgments is squarely applicable to the present case on hand. Similarly, in a recent judgment of the Hon'ble High Court reported in (2009) 1 MLJ 379 [PONNAMMAL vs. T.BALASUBRAMANIAM] has observed as follows:
"47.A bare perusal of those decisions would clearly highlight that there is no hard and fast rule that there cannot be a view that time can never be the essence of contract relating to immovable property, but it all depends upon each and every contract and the intention of the parties as found spelt out and portrayed therein and in the meantime, the cited decision of the Hon'ble Apex Court would clearly indicate and exemplify that the proposed purchaser without expressing any readiness and willingness to purchase the suit property, cannot simply rely on the abstract proposition that time was not the essence of contract relating to immovable property and approach the Court at the fag end of the limitation period by filing a suit for specific performance. Here, the conduct of the plaintiffs in filing the suit for specific performance on the verge of limitation and that too, after remaining dormant and tweedling their thumbs and allowing grass to grow under their feet totally for a period of almost four years from Exhibit A-1, would speak volumes that they are not entitled to the discretional relief of specific performance. This is a peculiar case in which the defendants did not simply act in draconian manner by sticking on to the stipulation in Exhibit A-1, that the plaintiffs were entitled to one year period as the time for performance, but taken a legalistic and justifiable view of the matter after issuing Exhibits A-2 and A-3. But on the other hand, once again the plaintiffs issued Exhibit A-5 the legal notice heaving their heart to their mouth that they were willing for executing the sale deed within the extended period of six months. But even then, the plaintiffs have not chosen to respond and made use of the opportunity."
28.A reading of the said judgment would show that the conduct of the plaintiff in remaining silent and filing the Suit on the verge of the limitation when there is escalation of the price without any proof of readiness and willingness coupled with the financial capacity would prevent him from getting the relief. In the present case on hand, the only evidence available about the financial capacity is that PW-1 was earning Rs.60,000/- per year which is the income for an order and that to by PW-1 and not by the plaintiffs. Therefore, the plaintiffs have not proved about their financial capacity.
29.In the judgment reported in 1999 (I) CTC 409 [PALANICHAMY CHETTIAR vs. C.ALAGAPPAN], the Hon'ble Apex Court was pleased to hold that a provision to grant specific performance of agreement or stringent and based on equitable consideration. It is further observed that the Court has to see all attendance circumstances. It is further held that the filing of the Suit at the fag end of the limitation will not absolved from proving his readiness and willingness. Similarly in the judgment reported in (2008) 7 SCC 310 [MOHAMMADIA COOPERATIVE BUILDING SOCIETY LIMITED vs. LAKSHMI SRINIVASA COOPERATIVE BUILDING SOCIETY LIMITED AND OTHERS], the Hon'ble Apex Court has observed as follows:
"71.Grant of a decree for specific performance of contract is a discretionary relief. There cannot be any doubt whatsoever that the discretion has to be exercised judiciously and not arbitrarily. But for the said purpose, the conduct of the plaintiff plays an important role. The courts ordinarily would not grant any relief in favour of the person who approaches the court with a pair of dirty hands."
30.Therefore on a consideration of the above said legal position, this Court is of the opinion that in the present case the plaintiffs have not approached this Court with clean hands without making the payments of rent and after taking advantage of the possession since PW-1 was in possession of the suit property as a tenant and also in view of the fact that the plaintiffs have not performed on their part of the contract even after the completion of the terms of the contract by the defendant. The said view of the Hon'ble Apex Court was also endorsed by an earlier judgment of the Hon'ble Supreme Court reported in (1996) 5 SCC 589 [LOURDU MARI DAVID vs. LOUIS CHINNAYA AROGIASWAMY] wherein the Hon'ble Supreme Court was pleased to hold that the relief being discretionary the same cannot be extended to a plaintiff who is not come to the Court with clean hands.
31.In the present case on hand there is absolutely no explanation on behalf of the plaintiffs for the delay in executing the sale deed more so after the performance of the contract by the defendant. The Division Bench of the Hon'ble High Court in the judgment reported in 1993-2-L.W.-84 [CHELLIAH NADAR, G. AND 4 OTHERS vs. PERIASAMI NADAR AND THREE OTHERS] was pleased to hold that when an unexplained delay on the part of the plaintiffs the relief of specific performance cannot be granted. The Hon'ble Division Bench has observed as follows:
"12.In Ramasamy v. Venkatachalam (1976 (1) M.L.J.243) Ismail, J. has refused specific performance on the ground that the plaintiff had filed the suit making false allegations. He held that the falsity of the case directly impinged on the essential ingredients and elements necessary for claiming the relief. The falsity of the case put forward by the plaintiff disentitled him from obtaining the discretionary relief of specific performance of agreement. In Vyapuri v. Vijaya (1978 T.L.N.J.62) the court found that a sum of Rs.11,000/- was not paid as advance as contended by the plaintiff and that what was paid was only a sum of Rs.1,000/-. The Division Bench comprising of Ismail and Nainar Sundaram, JJ. pointed out that the remedy of specific performance is an equitable remedy and is in the discretion of the court, which discretion has to be exercised according to recognised principles of law and not arbitrarily. The plaintiff who came to the court with a false case in material ingredients necessary for the grant of relief of specific performance will not be entitled to the equitable relief at all. It is obvious that in the present case the appellant has based his relief on Ex.A1 after making interpolation so as to make it appear that he has a right in it. And on the ratio laid down in the decisions referred to above, even this is sufficient to refuse the relief to the appellant. In addition, we have already seen that there is unexplained delay on the part of the appellant in seeking the remedy. In the circumstances, the learned trial judge rightly refused specific performance."
32.In the judgment reported in (2005) 6 SCC 243 [UMABAI vs. NILKANTH DHONDIBA CHAVAN], the Hon'ble Apex Court was pleased to observe that the owners has to prove the readiness and willingness. Applying the said ratio in the present case on hand, this Court is of the opinion that the plaintiffs have not establish the factum of readiness and willingness. In a recent judgment rendered in the Hon'ble Apex Court reported in (2008) 12 SCC 145 [BAL KRISHNA vs. BHAGWAN DAS], the Hon'ble Apex Court has observed as follows:
"13.Section 16 of the Specific Relief Act, 1963 (hereinafter referred to as "the Act") corresponds with Section 24 of the old Act of 1877 which lays down that the person seeking specific performance of the contract, must file a suit wherein he must allege and prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by him. The specific performance of the contract cannot be enforced in favour of the person who fails to aver and prove his readiness and willingness to perform essential terms of the contract. Explanation (ii) to clause (c) of Section 16 further makes it clear that the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction. The compliance with the requirement of Section 16(c) is mandatory and in the absence of proof of the same that the plaintiff has been ready and willing to perform his part of the contract suit cannot succeed. The first requirement is that he must aver in plaint and thereafter prove those averments made in the plaint. The plaintiff's readiness and willingness must be in accordance with the terms of the agreement. The readiness and willingness of the plaintiff to perform the essential part of the contract would be required to be demonstrated by him from the institution of the suit till it is culminated into decree of the court.
14.It is also settled by various decisions of this Court that by virtue of Section 20 of the Act, the relief for specific performance lies in the discretion of the court and the court is not bound to grant such relief merely because it is lawful to do so. The exercise of the discretion to order specific performance would require the court to satisfy itself that the circumstances are such that it is equitable to grant decree for specific performance of the contract. While exercising the discretion, the court would take into consideration the circumstances of the case, the conduct of parties, and their respective interests under the contract. No specific performance of a contract, though it is not vitiated by fraud or misrepresentation, can be granted if it would give an unfair advantage to the plaintiff and where the performance of the contract would involve some hardship on the defendant, which he did not foresee. In other words, the court's discretion to grant specific performance is not exercised if the contract is not equal and fair, although the contract is not void."
33.A reading of the said judgment would show that the readiness and willingness will have to be shown and proved by the plaintiffs till the date of the decree. Therefore applying the said ratio, this Court is of the opinion that the plaintiffs are not entitled to get the relief as sought for.
34.The another factum is to seen in the present case about the location of the suit property which is not in dispute that the suit property situated in the city of Trichy, the suit property also forms part of the Corporation and the city is the headquarters of the District. Therefore, when such a situation this Court can very well presume the raise in price of an immovable property which has increased manifold. Even though the raise in price in itself cannot be a ground for declining a relief seeking for specific performance while exercising the discretion coupled with the other facts the said fact is also one of the factor is taken into consideration. The Hon'ble Apex Court in the judgment reported in Civil Appeal No.6925 of 2000 dated 20.02.2007 [P.S.RANAKRISHNA REDDY vs. M.K.BHAGYALAKSHMI AND ANOTHER] has held that the raise in price of a immovable property by itself is not a ground to refuse the enforcement of agreement for sale. But in a case where the plaintiffs is not enable to get the discretion in his favour in view of his own contact and he has not proved the readiness and willingness then the said factor also to be seen while considering the relief to be granted in favour of the plaintiffs. Therefore, this Court is of the opinion that the plaintiffs are not entitled to get the relief.
35.The Trial Court on a consideration of the entire material on record both the oral and documentary has rejected the relief as sought for. Hence when the Trial Court has considered the entire material on record including the oral evidence of the parties, this Court while exercising the power under Section 96 of the Civil Procedure Code cannot disturb the same until and unless the said findings are erroneous, contrary to law and unreasonable. The Hon'ble High Court in the judgment reported in 2009 6 MLJ 725 [M.KOTHAI ACHI vs. PL.MANICKAM] has observed as follows:
"16.Therefore, the trial Court has gone into the entire issues involved in the suit and has given a well merited judgment. When the trial Court has considered the evidence on record and gave convincing reason for rendering judgment, the appellate Court in the normal circumstances shall not disturb the findings and reverse the judgment. It is true that an appeal is on re-hearing and the appellate Court can re-appreciate the appeal and review the entire case. But it should be borne in mind, that the trial court's appraisal of evidence shall not be disturbed normally until or unless it is erroneous and contrary to law and unreasonable. This is for the reason, the trial court is in a position to observe the demeanour of the witness before recording its findings. In this connection, it is useful to refer the judgment of the Hon'ble Supreme Court in Jagdish Singh v. Madhuri Devi (2008) 6 MLJ 842 wherein, the Hon'ble Supreme Court was pleased to hold that in the normal circumstances the findings given by the trial court on applying its mind shall not be disturbed unless for convincing reasons to be recorded by the appellate court. Therefore, considering the same, this Court is of the opinion that the findings of the Court below are perfectly agreeable and they do not warrant any interference."
36.Therefore this Court is of the opinion that the said finding arrived at the Trial Court having not found to be unreasonable and improper the same cannot be set aside. Moreover without a discretionary relief is not granted by the Trial Court, the Appellate Court in the normal circumstances cannot be interfered with the same. The Hon'ble Apex Court in the judgment reported in (2001) 6 SCC 600 [A.C.ARULAPPAN vs. AHALYA NAIK] has observed that in such circumstances the relief cannot be granted to the plaintiffs. The Hon'ble Apex Court in the judgment reported in (2008) 12 SCC 145 [BAL KRISHNA vs. BHAGWAN DAS] has also held that the relief of specific performance cannot be granted merely it is lawful to do so. Hence relying upon the said ratio laid down by the Hon'ble Apex Court, this Court is of the opinion that the Appeal deserves to be dismissed.
37.In so far as the application under Section 53-A of the Specific Relief Act is concerned, a reading of Ex.A-3 would show that there is no averment in the said agreement that possession is handed over to the plaintiffs in pursuant to the same. Therefore in the absence of the same, it has to be construed that the possession of the petitioner in C.R.P.(NPD) NO.2 OF 2004 is one of a lesser amount. Moreover in the present case on hand, the lease agreement is with PW-1. Ex.A-3 has been executed between the appellants and the respondent. Therefore it cannot be said that the appellants are the tenants as against PW-1. In the judgment reported in 1999-1-L.W.336 [PADMAVATHY AND ANOTHER vs. N.NARAYANAN] the Hon'ble High Court was pleased to hold that as follows:
"9.The learned counsel appearing for the respondent has relied on the decision in John V. John v. Goolamally Estates, A Partnes IP firm, rep. by Partner Abbasbhai Akserally Vedenagarvalla, having its Office at No.20 Errabalu Chetty Street, Madras - 1 (1989 T.L.N.J.311), wherein, S.Mohan, J. as he then was, has held that the agreement of sale puts an end to the jural relationship of the landlord and tenant.
10.The learned counsel has further relied on the decision in Annamalai v. Venkatasami (AIR 1959 Madras) wherein the learned Judge has held as follows:-
"But, after the date of the contract and after it was performed in part by consideration being paid for the contract and the landlord allowing the tenant to remain in possession by reason of the new status created under the contract, it was no longer open to the landlord to contend that the right of possession claimed by the petitioner was referable to the contract of lease".
On the basis of the above, the learned counsel appearing for the respondent has submitted that the petition at the instance of the petitioners for eviction cannot be maintained.
11.Per contra, the learned senior counsel appearing for the petitioners sought to rely on the decision in Jessie Thavamani v. Liakath Basha (1996 T.L.N.J.55) wherein, AR. Lakshmanan, J., after referring the said Judgment of Mohan, J. (as he then was), held as follows:-
"However, the judgment cited by Mr. Chidambara Subramaniam, learned counsel for the tenant, a decision of Mohan, J (O.C.J. as he then was) in John V. John v. Goolamally Estates, a Partnership firm. Represented by Partner Abbasbhai Akberally Vedenagarvalli 1989 T.L.N.J.311) is in support of his contention. Learned Judge held that having regard to the admitted agreement between the landlord and the tenant, their status as such landlord-tenant had been altered to that of a vendor and the Purchaser and consequently, Sec.53-A of the Transfer of Property Act would apply and the question of payment of rent would not arise, much less, wilful default in the payment of rent. In fact, the counsel appearing for the landlord in that case cited the judgment of Ramanujam, J., in 1981(1) M.L.J.35) for relying on the ratio that in the agreement for sale there is nothing to absolve the revision petitioner/tenant from payment of rent and therefore, only in such an event, the liability would cease and not by merely entering into an agreement and in such a case, Sec.53-A of the Transfer of Property Act would not apply. Learned Judge rejected the contention of the counsel for the landlord therein. According to the learned Judge, he was totally unable to appreciate the findings, since the agreement puts an end to the jural relationship of tenant and landlord and it also clearly establishes the relationship of purchaser and vendor and under such circumstances, the question of payment of rent does not arise. With great respect, I am unable to share the views of Mohan, J., and prefer to follow the view expressed by Ramanujam, J., in Duraisami Nadar v. Nagammal. In the instant case, as already seen, there is no evidence to show that the parties agreed that the relationship of landlord and tenant should cease and the tenant's possession should be traced only to the agreement of sale. The view taken by Mohan, J. That the status of the landlord and tenant had been altered to that of a vendor and the purchaser on entering into an agreement and that therefore, the question of payment of rent would not arise, much less, wilful default in the payment of rent, is in my respectful opinion, an extreme view. If there is any waiver of the rent pursuant to the agreement of purchase, it should be specifically and expressly stated in the agreement itself. By merely entering into an agreement of sale, the tenant does not acquire any right in the property. As already seen, it is a composite agreement and the landlord has agreed to sell the property to three persons and since the parties therein were not ready and willing to perform their part of the contract, the vendor sold the property to the present respondent/landlord. As rightly stated in this case, the agreement of sale has not been filed before the Rent Controller and none of the parties has spoken to about the agreement containing a term putting an end to the relationship of landlord and tenant and the tenant continued in possession pursuant to the agreement of sale. Even assuming that the petitioner is entitled to the benefits of Sec.53-A, the liability to pay the rent does not cease unless the agreement of sale puts an end of that liability in specific and express terms."
The abovesaid judgment will squarely apply to the facts of the present case. Even assuming that the document mentioned as Ex.P-10, is an agreement as contended by the respondent, in view of the judgement cited above, the liability of the tenant to pay the rent does not cease. Further, in this case, even according to the respondent, the respondent is the tenant and the alleged agreement is only in favour of his wife and so he cannot claim the benefits under section 53-A of the Transfer of Property Act."
38.The ratio laid down by the Hon'ble High Court is squarely applicable to the present case on hand since the tenant in the present case is the husband and the agreement for sale is with the wife and children. Moreover the possession is with the husband only in pursuant to the tenancy agreement. The judgment relied upon by the learned counsel for the petitioner reported in 2000-2-L.W.805 [R.KANTHIMATHI vs. MRS.BEATRICE XAVIER] also is not applicable to the present case since in the said judgment possession was handed over in pursuant to the agreement of sale. Therefore, the Hon'ble Apex Court was pleased to observe that in view of the subsequent sale agreement the earlier relationship of landlord and tenant gets vanished. The judgment is not applicable to the present case on hand wherein the tenancy agreement is with the husband and the agreement for sale is with his family members. Similarly, the Hon'ble Apex Court in the judgment reported in (2003) 4 SCC 705 [D.S.PARVATHAMMA VS. A.SRINIVASAN] was pleased to hold that in order to claim the benefit and part performance as provided under Section 53-A of the Transfer of Property Act, a person already in possession in another capacity, repudiate the said capacity and then some other Act in furtherance of the subsequent contract. Hence applying the said principle also, this Court is of the opinion that the relief cannot be granted under Section 53-A of the Transfer of Property Act.
39.Therefore as observed above, this Court is of the opinion that the eviction petition filed by the respondent is maintainable in law and facts. In the present case on hand, it is admitted by the petitioner in R.C.O.P.252 of 1996 that he has not paid the rent for nearly 10 years. It is for the petitioner therein to explain and prove the reasons behind the same. The reason assigned by the petitioner that there was an understanding for adjustments between the parties was not supported by the evidence. It is also seen that it is submitted that by the petitioner that mere permission has been obtained for the change of user from residential purpose to Industrial purpose and there is a further admission that the property has been let out only for residential purpose. Hence, such an admission being the best form of evidence, this Court is of the opinion that the order passed by the Appellate authority will be confirmed.
40.In so far as the Act of Waste is concerned as contended by the learned counsel for the petitioner, it has to be seen from the point of view of the landlord. The Act of Waste has to be seen from the view of nature of building affecting the value of equality of the same. In the judgment reported in 1996-2-L.W.-322 [SHANMUGAM, M. vs. C.KANNABIRAN AND ANOTHER] the Hon'ble High Court has observed as follows:
"22.The other ground of eviction is 'acts of waste' alleged to have been committed by the revision petitioner. Admittedly, some changes have been made by the tenant. He may plead that the changes that have been made have not impaired the utility and value of the building. He may also contend that what he has done has only added to its value. In this case, the evidence that has been let in is that he has put up a sun-shade, dug holes in the floor and has effected changes for making it convenient to run a watch-repairing shop. Even if it is contended that it is only temporary, a big hall has now been converted into small rooms and made use of for different purposes. While considering as to how far these changes have impaired materially the utility and value of the building, the same has to be judged and determined from the point of view of the landlord, and not that of the tenant.
23.In the latest decision of the Supreme Court in JT 1996(2) S.C.615 (Shri Gurbachan Singh and Another v. Shivalak Rubber Industries and others), their Lordships held thus:-
"A plain reading will go to show that it contemplates that a tenant is liable to eviction who has committed such acts as are likely to impair materially the value of utility of the building or rented land. The meaning of the expression "to impair materially" in common parlance would mean to diminish in quality, strength or value substantially. In other words, to make a thing or substance worse and deteriorate. The word "impair" cannot be said to have a fixed meaning. It is a relative term affording different meanings in different contexts and situations. Here in the context the term "impair materially" has been used to mean considerable decrease in quality which may be measured with reference to the antecedent state of things as it existed earlier in point of time as compared to a later stage after the alleged change is made or effected suggesting impairment. Further, the use of the word "value means intrinsic worth of a thing. In other words, utility of an object satisfying, directly or indirectly , the needs or desires of a person thus the ground for eviction of a tenant would be available to a landlord against the tenant under5 S.13(2) (iii) of the Act, if it is established that the tenant has committed such acts as are likely to diminish the quality, strength or value of the building or rented land to such an extent that the intrinsic worth or fitness of the building or the rented land has considerably affected its use for some desirable practical purpose. The decrease or deterioration, in other words, the impairment of the worth and usefulness of the value and utility of the building or rented land has to be judged and determined from the point of view of the landlord and not of the tenant or any one else."
41. This Court is of the opinion that the said ratio laid down by the Hon'ble High Court is squarely applicable to the present case on hand.
42.In so far as the Cross objection filed by the respondent in A.S.No.700 of 2003 is concerned, the said objection has been filed challenging the rate of interest awarded by the Court below on the amount received by the defendant. The Court below has fixed 12% per annum to be payable by the defendant/respondent to the Appellant in A.S.No.700 of 2003. It is not in dispute that the respondent herein has received the said amount paid by the plaintiff.
43.The Court below has taken into consideration of the then prevailing rate of interest. The Court has also taken into consideration of the facts and circumstances of the case, while granting relief. This Court on a consideration of the facts and circumstances of the case do not find that the amount fixed by the Court below warrants any interference. Moreover the Court below has ordered the payment of interest from date of the presentation of the plaint alone till the actual payment which in the opinion of this Court is just and reasonable. Accordingly the cross appeal is also liable to be rejected. No costs.
sri To
1. II Additional Subordinate Judge, Trichirapalli.
2. Rent Control Appellate Authority cum Principal Sub Judge, Trichirappalli.